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2014 DIGILAW 450 (RAJ)

Fashion Suiting Pvt. Ltd. v. State of Raj.

2014-02-11

MAHESH CHANDRA SHARMA

body2014
Hon'ble SHARMA, J.—These three criminal misc. petitions under Section 482 Cr.P.C. have been filed for quashing the FIR No. 749/2013 for sections 420, 406, 467, 468, 471, and 120B, FIRs No. 837/2013 and 869/2013 registered at PS Vaishali Nagar, Jaipur City(South), for offences under sections 420, 406, 467, 468, 471, 504 and 120B IPC as well as entire proceedings as initiated thereunder against the petitioners. As the matter involved in all these three Cr. Misc. petitions is same for quashing the FIRs. registered against the petitioners at PS Vaishali Nagar, they are being disposed of by this common order. 2. For deciding the controversy raised in all the three criminal misc. petitions, the facts of Cr.Misc. Petition No. 3897 have been taken into consideration. The respondents 2 and 3 complainants filed a complaint before the Metropolitan Magistrate No. 14, Jaipur Metropolitan, Jaipur, against the petitioners wherein allegations have been levelled against the petitioners that accused No. 1 company is a company incorporated under the Companies Act and accused No. 2 to 5 are Directors of the said company and are completely liable for entire day- to day business and affairs of accused No. 1 company. The accused No. 1 company is engaged in the business of selling its products by way of chain system all over the country. The complainants also joined accused company in the year 2001-2002 and started to make efforts to add the members in the accused company. It was on account of their efforts that income of complainant No. 1 become Rs. 51,814/- in the year 2005 and Rs. 1,20,540 in the year 2008. According to the performance of the complainants, their income could have been approximately more than Rs. 3,00,000/- but in the year 2008 the company in a planned manner in order to grab the profit of members added by the complainants, removed total 18,000 members added under the complainants and added them under their own person namely Gopal Kaushik, which is against the policy of the company as well as illegal, on account of which in place of increasing the income of the complainants, it has come down. On account of said fraud of the company, the business value of complainant No. 2, which was 1588287as on 12.1.2009 has been reduced in only four days and remained 502889, which is not possible in practical etc. On account of said fraud of the company, the business value of complainant No. 2, which was 1588287as on 12.1.2009 has been reduced in only four days and remained 502889, which is not possible in practical etc. On receipt of the said complaint, the Metropolitan Magistrate forwarded it under section 156(3) Cr.P.C. to the SHO Police Station Vaishali Nagar, Jaipur City (South) for investigation, who registered FIR No. 749/2013 against the present petitioners for offence under sections for quashing the FIR No. 749/2013 for sections 420, 406, 467, 468, 471 and 120B IPC registered at PS Vaishali Nagar, Jaipur City (South) and started investigation. 3. The respondents 2 and 3 filed detailed reply to the criminal misc. petition and refuted the contents raised in the petition. It was requested that the criminal misc. petition may be dismissed with exemplary cost with the direction to the police authorities to investigate the matter urgently, deeply and expose the activities of the petitioners in running Right Concept Marketing Business by misleading to the public and exploiting them. 4. Mr. D.K. Gaur assisted by Mr. Sushil Pujari, learned counsel appearing for the petitioners has contended that the petitioners are innocent persons and have been falsely implicated in the case. The FIR and the criminal proceedings against the petitioners are nothing but an abuse of the process of law, which in the interest of justice as well as to secure the ends of justice deserve to be quashed and set aside. Perusal of FIR and material available on record clearly show that the essential ingredients for constituting offence punishable under Sections 420, 406, 467, 468, 471 and 120 B IPC are clearly lacking in the case in hand. The act of removing 18000 members is of the year 2008, whereas the complainants have lodged the FIR in the year 2013 i.e. after about 5 years and no satisfactory explanation regarding such delay has been given by the prosecution. The petitioner company is filing annual returns as provided in section 159 of the Companies Act every year. In addition to income tax, service tax, the petitioner Company is also filing VAT every year under TIN No. 08461005171. The annual accounts of the company have been audited by the CA and hence there is no element of uncertainty, fraud, cheating or ambiguity towards existence of company and its functioning within the four corners of law. In addition to income tax, service tax, the petitioner Company is also filing VAT every year under TIN No. 08461005171. The annual accounts of the company have been audited by the CA and hence there is no element of uncertainty, fraud, cheating or ambiguity towards existence of company and its functioning within the four corners of law. The company every year generated payment of revenue to the tune of approximately Rs. 125 crores including central excise, service tax, income tax, VAT to the Government. The company has six depots/warehouse and 225 pickup centres (biggar version of retail shop) and25 retail shops (RCM Bazar) in Rajasthan and 90 deposts/ warehouse and 4500 pickup centers and 400 retail shops (RCM Bazar) all over India including Rajasthan. The complainants are getting their share of profit as commission income from time and prior to that the complainants never raised any objection with regard to their share of commission income. A perusal of FIR shows that the complainants have failed to disclose as to how much their share of commission has been reduced. It has been argued that there is nothing on record to implicate the petitioners in the crime and it clearly shows that the petitioners have been falsely implicated in the case. The learned counsel for the petitioners has produced the copies of the judgments of this court in which compromise was entered into between the parties and this court on the basis of the judgment of the Apex Court in Gian Singh vs. State of Punjab and another (2012 (9) SCC 427) allowed the criminal misc. petitions, in the cases noted below: (i)S.B. Cr. Misc. Petition No. 1003 of 2013 Trilok Chand and others vs. State of Rajasthan and others dated 18.6.2013 by Hon'ble Mr. Justice P.K. Lohra Vacation Judge. (ii) S.B. Criminal Misc. Petition No. 1542 of 2013 Bhagchand Chhabda and Ors. vs. State of Rajasthan decided on 15.5.2013 by Hon'ble Mr. Justice Atul Kumar Jain. (iii) S.B. Cr. Misc. Petition No. 1544 of 2013 decided on15.5.2013 Bhag Chand Chhabda vs. State of Rajasthan and others decided on15.5.2013 by Hon'ble Mr. Justice Atul Kumar Jain. (iv) S.B. Cr. Misc. Petition No. 1390/2013 Bhagchand Chhabda and others vs. State of Rajasthan and another decided on 3.5.2013 by Hon'ble Mr. Justice R.S. Chauhan. (v) S.B. Cr. Misc. (iii) S.B. Cr. Misc. Petition No. 1544 of 2013 decided on15.5.2013 Bhag Chand Chhabda vs. State of Rajasthan and others decided on15.5.2013 by Hon'ble Mr. Justice Atul Kumar Jain. (iv) S.B. Cr. Misc. Petition No. 1390/2013 Bhagchand Chhabda and others vs. State of Rajasthan and another decided on 3.5.2013 by Hon'ble Mr. Justice R.S. Chauhan. (v) S.B. Cr. Misc. Petition No. 1545 of 2012 Bhagchand Chhabda and others vs. State of Rajasthan, decided on 15.5.2013 by Hon'ble Mr. Justice Atual Kumar Jain. (vi) S.B. Cr. Misc. Petition No. 1543/2013 Bhagchand Chhabda and others vs. State of Rajasthan decided on 15.5.2013 by Hon'ble Mr. Justice Atul Kumar Jain. (vii) S.B. Cr. Misc. Petition No. 1499 of 2013 Bhagchand Chhabda and others vs. State of Rajasthan decided on 7.5.2013 by Hon'ble Mr. Justice R.S. Chauhan. 5. The learned counsel has also placed reliance on the judgments in Jeewan Kumar Raut and anr. vs. Central Bureau of Investigation Criminal Appeal No. 1133 of 2009 decided on 7.7.2009 by the Supreme Court reported in Manu/SC/1153/2009, Avtar Singh vs. State of Punjab ( AIR 1965 SC 666 ) Syed Kaleem vs. M/s. Mysore Lakshmi Beedi Works and another (1993 Cr.L.J. 232, Lakshmi Cement vs. State and another (1995 RCC 136), Badri Narayan and another vs. State of Rajasthan (1998 RCC 581), Kailash Chand Gupta vs. State of Rajasthan (2002 Cr.L.J. 2439, Suresh Nanda vs. CBI 2008 AIR SCW 898, and M/s. Ghel Employees Stock option vs. M/s. India Infoline Limited, judgment dated 22.3.2013 Criminal Appeal No. 488 of 2013 by the Apex Court. 6. Mr. A.K. Bhargava assisted by Mr. Satish Khandal and Mr. Peeyush Kumar, PP appearing for the State, have argued that the criminal misc. petitions filed by the petitioners deserve to be quashed and set aside. They have argued that the petitioners have also removed the members in number of cases for which the aggrieved persons filed FIRs. against the petitioners and the photostat copies of the same have been filed with the reply to the criminal misc. petitions filed by the petitioners deserve to be quashed and set aside. They have argued that the petitioners have also removed the members in number of cases for which the aggrieved persons filed FIRs. against the petitioners and the photostat copies of the same have been filed with the reply to the criminal misc. petition No. 3897/2013, which are mentioned hereunder: (i) FIR No. 70/2012 dated 9.2.2012 Police Station Chomu (Jaipur Rural) (ii) FIR No. 69/2012 dated 9.2.2012 Police Station Chomu (Jaipur Rural) (iii) FIR No. 661 dated 19.10.2013 Police Station Chomu (Jaipur Rural) (iv) FIR No. 869/2013 Police Station Vaishali Nagar Jaipur City (South) (v) FIR No. 837/2013 Police Station Vaishali Nagar Jaipur City (South) (vi) FIR No. 749 dated .9.2012 Police Station Vaishali Nagar Jaipur City (South) (vii) FIR No. 77 dated 11.2.2012 Police Station Chomu (Jaipur Rural) 7. I have heard learned counsel for the parties. Before proceeding further it would be necessary to have a look at the important rulings of the Apex Court. In State of Haryana & Others vs. Bhajan Lal & Others 1992 Supp. (1) SCC 335, the Apex Court in the backdrop of interpretation of various relevant provisions of the Code of Criminal Procedure, under Chapter XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised: "(1) Where the allegations made in the first information report or the Complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." The Apex Court in Zandu Pharmaceutical Works Ltd. & Others vs. Mohd. Sharaful Haque & Another (2005) 1 SCC 122 observed thus:- "It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto." A three-Judge Bench of the Apex Court in Inder Mohan Goswami and Another vs. State of Uttaranchal & Others (2007) 12 SCC 1 comprehensively examined the legal position. The court came to a definite conclusion and the relevant observations of the court are reproduced in para 24 of the said judgment as under:- "Inherent powers under Section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute." 8. In view of the rulings of the Apex Court quoted above, I have gone through the complaint and the contents of the criminal misc. petitions filed by the petitioners in S.B. Cr. Misc. Petition No. 3897 of 2013. It is alleged in the petition that the complainants joined accused company in the year 2001-2002. The accused respondent No. 1 is engaged in the business of selling its products by way of chain system. It is further alleged in the criminal misc. petitions that in the year 2008, 18000 members of the complainants were removed and shown in the name of one Gopal Kaushik. In my view it is too early to make any comments on the complaint or the FIR filed by the complainants. It is also an admitted fact that besides the FIRs. in the above three criminal misc. petitioners, seven more FIRs. have also been lodged against the petitioners, copies of which have been filed with the reply filed by the complainants in the criminal misc. It is also an admitted fact that besides the FIRs. in the above three criminal misc. petitioners, seven more FIRs. have also been lodged against the petitioners, copies of which have been filed with the reply filed by the complainants in the criminal misc. petition No. 3897/2013. At this stage it is too early to make any comments on the complaints and the FIRs. registered on the basis of the material available on record during the course of investigation by the police and subsequent proceedings taken by the Metropolitan Magistrate in the instant matters. 9. I have also gone through the complaint and the contents of the criminal misc. petitions filed by the petitioners in S.B.Cr. Misc. Petition No. 4048 of 2013. It is alleged in the criminal misc. petition itself that initially monthly income of complainant became Rs. 26,000/-, later on within 3-4 years, it became Rs. 70,000/- and on request of accused 6 to 8 he shifted at Jaipur and on 22.4.2007, while going for attending meetings of company the complainant met with an accident and lost his both legs. It is further alleged in the petition that while making conspiracy and forgery by the accused company members of complainant Group Poonam Rathi, Dushyant Rathi and others were removed and added in the group of accused No. 6 due to which income of the complainant come to an end. The accused respondent No. 1 is engaged in the business of selling its products by way of chain system. In my view it is too early to make any comments on the complaint or the FIR filed by the complainant. At this stage it is too early to make any comments on the FIR registered on the basis of the material available on record by the police during the course of investigation and subsequent proceedings taken by the Metropolitan Magistrate in the instant matters. 10. I have also gone through the complaint and the contents of the criminal misc. petitions filed by the petitioners in S.B. Cr.Misc. Petition No. 4152 of 2013. It is alleged in the criminal misc. petitions itself by the petitioners that the complainant joined the chain scheme and second 60 points by purchasing goods and got done her insurance and earned Rs. 3,46,500, but the company gave only Rs. petitions filed by the petitioners in S.B. Cr.Misc. Petition No. 4152 of 2013. It is alleged in the criminal misc. petitions itself by the petitioners that the complainant joined the chain scheme and second 60 points by purchasing goods and got done her insurance and earned Rs. 3,46,500, but the company gave only Rs. 5-7 thousand in installments and did not make remaining payment and on demanding made excuses for one reason and the other etc. In the reply filed by the complainant, the complainant has also filed copy of the complaint dated 11.10.2013 at PS Vaishali Nagar, Jaipur, copy of the Newspaper clipping published in Dainik Bhaskar dated 11.12.2012 and further copy of the Newspaper clipping about seizure of 8 godowns of the accused petitioners. At this stage it is too early to make any comments on the FIR registered on the basis of the material available on record by the police during the course of investigation and subsequent proceedings taken by the Metropolitan Magistrate in the instant matters. 11. In all the three criminal misc. petitions the complainants or the petitioners have not come out with any case of compromise hence the judgments filed by the learned counsel for the petitioners on the basis of the Apex Court ruling in Gian Singh vs. State of Punjab and another (2012 (9) SCC 427, will not help the petitioners in any manner. 12. For the reasons mentioned above, the criminal misc. petitions filed by the petitioners are rejected. The stay applications also stand rejected. The interim orders passed by this Court in the criminal misc. petitions from time to time also stand vacated.